State v. Anil, 79-162-C

• Citation: 417 A.2d 1367
• Decision Date: 29 July 1980
• Docket Number: No. 79-162-C,79-162-C
• Parties: STATE v. Marcus A. ANIL. A.
• Court: United States State Supreme Court of Rhode Island

Page 1367

417 A.2d 1367

STATE v. Marcus A. ANIL.

No. 79-162-C.A.

Supreme Court of Rhode Island.

July 29, 1980.

Dennis J. Roberts, II, Atty. Gen., Forrest L. Avila, Sp. Asst. Atty. Gen., for plaintiff.

Mann & Roney, Robert B. Mann, Providence, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is a criminal appeal by the defendant from a judgment of conviction for the unlawful possession of cocaine with intent to deliver in violation of G.L.1956 (1968 Reenactment) § 21-28-4.01(A)(2)(a) and the unlawful delivery of cocaine in violation of G.L.1956 (1968 Reenactment) § 21-28-4.01(A)(2)(a), as enacted by P.L.1974, ch. 183, § 2.

Marcus Anil and Antonio Rodriguez were arraigned on a six-count information alleging conspiracy and various narcotic offenses. Prior to trial both defendants filed motions to suppress evidence that was the fruit of a search conducted pursuant to an invalid search warrant. After a hearing the trial justice granted the motion to suppress and dismissed counts 4, 5, and 6 against both defendants. The state then proceeded to trial on the remaining counts.

At the completion of the state's case, the trial justice granted Rodriguez's motion for a judgment of acquittal on counts 1, 2, and 3 and defendant Anil's motion for a judgment of acquittal on count 1, the conspiracy count. Rodriguez was discharged, and the case against Anil on the remaining two counts was submitted to the jury. They returned guilty verdicts on both counts. The trial justice then sentenced defendant to concurrent terms of ten years imprisonment in the Adult Correctional Institutions (ACI) and ordered three years to be served with seven years suspended and seven years probation to commence upon release from confinement.

The state's case depended primarily upon the testimony of one witness, Norman Phelps, an agent of the Division of Drug Control. The record discloses the following facts. In the company of an informer known to defendant as Bobby Porter, Agent Phelps on the evening of October 24, 1975, visited the apartment of Marcus Anil at Friendship Street, Providence. On this occasion Phelps attempted to purchase cocaine from defendant Anil. Throughout this meeting Porter did not participate in any manner, however, he was present at all times except in one brief instance when he visited the bathroom. No sale or delivery of cocaine took place at this meeting.

At 9 p. m. on October 28, 1975, Agent Phelps went alone to Anil's Friendship Street apartment. After briefly negotiating terms for a sale of cocaine, he left the apartment, and defendant followed. Once inside their respective automobiles, the two men drove to 3 Parkis Avenue in Providence. The sale of cocaine took place in a basement apartment at that address. Agent Phelps gave defendant $1,700 in unmarked bills, and in exchange, Anil gave Agent Phelps a quantity of a substance that was later determined to be cocaine.

In Anil's defense Antonio Rodriguez took the stand, and defendant also testified in his own behalf. Both recalled a meeting at defendant's apartment sometime in October 1975, at which Agent Phelps came to the apartment with a person whom they knew as Bobby Porter. They averred that Porter was there for the sole purpose of giving Anil a haircut.

Anil also testified that he knew the informant by name and physical appearance. Both defendant and Rodriguez categorically denied that a sale of cocaine took place at that or any other meeting.

In his appeal defendant raises several issues; we shall consider each in turn.

I

Anil first urges us to find error in the trial court's refusal to disclose the identity of the state's informant. We find this contention is unsupported.

Before trial defendant filed a motion asking the state to furnish him with the identity of the informant, but the state did not comply. In the trial court Anil claimed that he had a constitutional right to this information because the informant's testimony might have impeached the key government witness, because the informant might have possessed exculpatory evidence, and because the informant was, in any event, a material witness to the alleged crimes. The prosecution argued that the informant's identity was irrelevant because he was not an active participant in the transaction. In denying the defendant's motion, the trial justice held that the person whose identity defendant sought to know was not "in the true sense of the word a confidential informant" and that he was not a material witness.

A

The defendant concedes that the so-called informant was not a "confidential informant" as the term is usually understood because the "informant" was known to defendant and Rodriguez. Accordingly, even if we assumed for the sake of argument that the informant was a material witness who defendant should have been able to call, we would nevertheless conclude that the trial court's action was harmless error since from the record it is clear that defendant knew the identity of the informer at all times before and during the trial. See, e. g., Smith v. United States, 273 F.2d 462, 465-66 (10th Cir. 1959), cert. denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729 (1960); Sorrentino v. United States, 163 F.2d 627, 630 (9th Cir. 1947); State v. Roddy, R.I., 401 A.2d 23, 36-38 (1979). Disclosure of his name and whereabouts, therefore, would not have provided defendant with information he did not already know. Cf. Roviaro v. United States, 353 U.S. 53, 60 n.8, 77 S.Ct. 623, 627-28 n.8, 1 L.Ed.2d 639, 695 n.8 (1957) (unclear from record whether identity of informer was known to defendant; Court unable to say that failure to disclose was harmless error).

In any event, we conclude that the alleged confidential informant was not a material witness. We recognize that the state must, in order to protect the public interest in effective law enforcement, be able to withhold the identity of persons who furnish information of criminal activity to law enforcement agents and, further, that the scope of this privilege is not absolute. Roviaro v. United States, 353 U.S. at 59-60, 77 S.Ct. at 628-29, 1 L.Ed.2d at 644-45. One exception to the rule of nondisclosure applies either when an informer actively participates in setting up the crime and is present at its commission, or when the informer actually takes part in the crime. Id. at 64-65, 77 S.Ct. at 629-30, 1 L.Ed.2d at 647; Portomene v. United States, 221 F.2d 582 (5th Cir. 1955); United States v. Conforti, 200 F.2d 365 (7th Cir.), cert. denied, 345 U.S. 925, 73 S.Ct. 782, 97 L.Ed. 1356 (1953); Sorrentino v. United States, 163 F.2d 627 (9th Cir. 1947). Under these circumstances a defendant has a right to know the identity of an informant whose testimony would be relevant and helpful to the defendant. Roviaro v. United States, 353 U.S. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d at 645.

Explaining how the judiciary should approach the resolution of this issue, the Roviaro Court held that

"no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. at 62, 77 S.Ct. at 628, 1 L.Ed.2d at 645.

In the instant case an examination of the record clearly discloses that the so-called informant participated only in the first meeting. It is undisputed that no crime occurred at the first meeting. According to evidence adduced at trial, the alleged informer merely introduced Agent Phelps to Anil. He was not present at the time of the sale that occurred several days after the introduction. Furthermore, nothing in the record suggests to us that the supposed informer possessed exculpatory information that would have been helpful to defendant. At most he could have testified to wholly tangential matters that were of little relevance to the charges under trial.

In situations like the one before us, where the informant merely brings the defendant together with the authorities and takes no active role in the commission of the crimes charged, no disclosure of his identity is required because his testimony could only be peripheral. United States v. Toombs, 497 F.2d 88, 93 (5th Cir. 1974); United States v. Clark, 482 F.2d 103, 104 (5th Cir. 1973); see United States v. Herrera, 455 F.2d 157, 158 (5th Cir. 1973); United States v. Mendoza, 433 F.2d 891, 894 (5th Cir. 1970); Churder v. United States, 387 F.2d 825, 831-32 (8th Cir. 1968); State v. Milligan, 71 N.J. 373, 383, 365 A.2d 914, 923 (1976). Accordingly the court was correct in denying defendant's request before trial and during cross-examination of government witnesses for disclosure of the identity of the so-called informer.

B

The defendant further argues that the denial of his motion to disclose impinged upon his right to compulsory process to obtain witnesses. He relies on State v. Lerner, 112 R.I. 62, 308 A.2d 324 (1973), in which we held that "art. I, sec. 10, (of the Rhode Island constitution) secures to a defendant the opportunity to conduct an adequate pretrial investigation designed to assist in the preparation of a defense and to that end be permitted to interview or interrogate a consenting witness held in the custody of the state." Id. at 76, 308 A.2d at 335. The simple answer to this contention is that, unlike the witness in Lerner, the witness Anil sought to question was not in the custody of the state. Moreover, the record is devoid of any evidence of defendant's efforts to secure Porter as a witness or of Anil's inability to obtain him as a witness due to the state's withholding of information regarding his whereabouts. Finally there is no evidence showing how Porter's testimony could have...